HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 58675 of 2008 Petitioner :- Lal Mani Mishra Respondent :- State Of U.P. & Others Petitioner Counsel :- Jeevan Prakash Sharma,Sanjay Kr. Srivastava Respondent Counsel :- C.S.C. Hon'ble Krishna Murari,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State - Respondents.
This petition has been filed seeking a writ of mandamus to command the respondents to refund Rs.35,712/- recovered from gratuity, Rs.12587/- recovered from encashment and Rs.2401/- being difference amount of encashment adjusted from the gratuity of the petitioner, total amounting to Rs.50,700/- deducted from the post retiral benefit of the petitioner.
The sole question which arises for consideration in this petition is whether certain monetary benefits extended to the petitioner on account of revision of pay scale or grade during service can be recovered after his superannuation on the allegation that it was paid on account of some mistake or wrong calculation.
Admittedly, in the present case, the petitioner was working on the post of Sub-Registrar, Allahabad and he retired on 30.6.2001 on attaining the age of superannuation.
After retirement, the pension papers of the petitioner were processed and ultimately on 6.6.2008 a Revised Pension Order was issued to the petitioner. According to which the pension was fixed on the basis of last drawn salary of Rs.5500/- and a sum of Rs.35,712/- was deducted on account of excess payment from the gratuity of the petitioner. Further an amount of Rs.2401/- was deducted from the gratuity as difference in amount of encashment and the pension was also reduced by Rs.21/-. Thus, in all a sum of Rs.50,700/- was deducted from the post retiral benefits payable to the petitioner. On receiving the letter dated 6.6.2008, petitioner made an application dated 27.8.2008 before the respondent no. 3 stating therein that the deductions made by the authority without any notice or opportunity of hearing is illegal and the said amount be paid to the petitioner. However, when nothing was done in the matter, he approached this Court by filing instant writ petition.
It has been submitted on behalf of the petitioner that respondents have no authority to recover the amount already paid to the petitioner from the post retiral benefits unless it is established that the said amount was received by the petitioner on account of any misrepresentation or fraud on his part. It has further been submitted that before passing the order deducting the amount, no notice or opportunity of any kind, whatsoever, was given as such also the impugned deduction is arbitrary and against the principles of natural justice.
A counter affidavit has been filed on behalf of the respondents, wherein it has been stated that Deputy Inspector General (Registration) had written a letter to the Additional Director (Pension) for deducting the excess payment made to the petitioner due to wrong fixation of pay. It has further been mentioned that anything paid to the petitioner due to wrong calculation was subject to recovery and there was no need of opportunity to be given to the petitioner before making the deduction. However, there is no averment, whatsoever, in the entire counter affidavit with respect to any fraud or misrepresentation on the part of the petitioner for the alleged wrong calculation while pay fixation.
Neither in the order directing deduction nor there is anything else on record of the counter affidavit to show that the alleged wrong fixation of pay of the petitioner was on account of any misrepresentation or fraud on his behalf. It is well settled that if any financial benefits like increment or revised pay scale has been provided to an employee by the employer, the amount received in lieu of such increment or revision in pay scale is not liable to be recovered unless it is established that the same was received by the employee on account of some fraud or misrepresentation on his part.
In case of Nand Kishore Sharma and others Vs. State of Bihar and others reported in 1995 Supplement (3) Supreme Court Cases, 722, it has been held that amount already paid cannot be recovered. In said case Apex Court was considering the withdrawal of revised pay scale and recovery of arrears paid. The State of Bihar consequent to the report of the Pay Commission recommended revised pay scale for Plant Protection Supervisor which was accepted and the department enforcing the revised pay scale paid the arrears in lum sum in the year 1981. The State Government subsequently directed the recovery of excess payment. Apex Court held that amount already received cannot be recovered.
In State of Karnataka and another Vs. Mangalore University Non-Teaching Employees and others, reported in (2002) 3 Supreme Court Cases 302, the Apex Court while considering the entitlement of house rent allowances held that they were not entitled for the same but in that circumstances also the Apex Court held that "in such circumstances, since the employees had drawn the allowances on the basis of financial sanction of the competent authority that is Government and had incurred additional expenditure towards house rent, the employees should not be punished for no fault of theirs, hence there cannot be any recovery."
Similar view has been taken in 1995 Supreme Court Cases (L & S) 522 Union of India Vs. Sita Ram Deer, 1994 Supreme Court Cases (L&S) 1445 Nand Kishrore Sharma Vs. State of Haryana, 1996 Supreme Court Cases (L& S) 124, that if additional payment has been made to an employee for no fault of theirs, they should not be penalized for this.
In Sahib Ram Vs. State of Haryana and others reported in 1995 Supplement (1) Supreme Court Cases, 18 it has been held in paragraph 5 that the Principal in the said case has erred in granting relaxation of the educational qualification and has awarded revised pay scale. Since it was not made on any misrepresentation made by the petitioner, no recovery can be made from the petitioner.
A Division Bench of this Court in case of State of U.P. and others Vs. State Public Services Tribunal reported in (2004) 1 UPLBEC, 127 has taken a view that where incumbent is not at all responsible for such wrong fixation, by no stretch of imagination direction can be issued for recovery of the amount.
In Harish Chand Srivastava Vs. State of U.P. reported in (1996) 3 UPLBEC 1840, it has been held by the Division Bench that if certain benefits have been given to a person not on the basis of misrepresentation or misappropriation of the person concerned and in lieu thereof if some monetary benefit has been given that cannot be recovered.
In the case of Syed Abdul Qadir and others Vs. State of Bihar and others, (2009) 3 SCC 475, it has again been held that there are several precedents of the Supreme Court where relief has been granted against recovery of excess payment of emoluments/allowance if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
In the present case also, on the admitted facts on record, the petitioner cannot be said to be at fault for wrong fixation of his pay and as such the amount could not have been recovered from the post retiral benefits.
In the facts and circumstances of the case, the writ petition stands allowed. A mandamus is issued commanding the respondents to pay back to the petitioner a sum of Rs.50,700/- deducted from the post retiral benefits of the petitioner within a period of two months from the date of production of a certified copy of this order before them along with 6% simple interest.
Order Date :- 12.7.2011 Dcs